Commonwealth of Australia
Australian Citizenship Act 2007
AUSTRALIAN CITIZENSHIP (PERMANENT RESIDENT STATUS)
(SUBSECTION 5(2))
I, KEVIN ANDREWS, Minister for Immigration and Citizenship, acting under subsection 5(2) of the Australian Citizenship Act 2007 (‘the Act’), DETERMINE that persons holding special category visas, special purpose visas, and persons present in Norfolk Island or the Territory of Cocos (Keeling) Islands, and who satisfy the requirements mentioned in Schedule 1 to this instrument are taken to be, or to have been, persons to whom subsection 5(2) of the Act applies during any period while the person satisfies the requirements.
Dated 27 June 2007
KEVIN ANDREWS
Minister for Immigration and Citizenship
[NOTE 1: Subsection 5(2) of the Act relevantly provides the Minister may, by legislative instrument, determine that persons who hold a special category visa or a special purpose visa; or persons who have held a special category visa; or persons who are present in Norfolk Island or the Territory of Cocos (Keeling) Islands; and who satisfy specified requirements are, or are during a specified period, persons who are permanent residents at a particular time.
NOTE 2: Under section 3 of the Act, a person is taken to be ordinarily resident in a country if and only if he or she has his or her home in that country, or that country is the country of his or her permanent abode even if he or she is temporarily absent from that country. However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only.]
Schedule 1
Certain Holders of Special Category Visas Determined to be Permanent Residents
1. A New Zealand citizen who:
(a) was in Australia on 26 February 2001 as the holder of a special category visa; or
(b) was outside Australia on 26 February 2001 but was in Australia as the holder of a special category visa for a period of, or periods that total, not less than 1 year in the 2 years immediately before that date; or
(c) has a certificate, issued under the Social Security Act 1991, that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date, regardless of the date certified or when the certificate is issued; or
2. A New Zealand citizen who meets the requirements of Item (1) and:
(a)
(i) who is in Australia as the holder of a special purpose visa taken to have been granted on the basis of the person’s status as:
a. an airline crew member; or
b. an airline positioning crew member; and
(ii) who is ordinarily resident in Australia; or
(b)
(i) who is not in Australia; and
(ii) who is ordinarily resident in Australia; and
(iii) who, immediately before last leaving Australia, was the holder of a special purpose visa, taken to have been granted on the basis of the person’s status as:
a. an airline crew member; or
b. an airline positioning crew member;
(iv) that had not ceased; and
(v) who is not outside Australia because he or she was removed or deported from Australia under the Migration Act 1958.
3. A New Zealand citizen mentioned in Items (1) and (2) is taken to be, or to have been, a person to whom subsection 5(2) of the Act applies during any period while the person is, or was:
(a) in Australia as the holder of a special category visa; and
(b) not taken to be the holder of a special purpose visa except for those persons and for the purposes specified in Item (2) of this Schedule; and
(c) not in Australia as a diplomatic or consular representative of New Zealand, or the spouse or dependent child of a diplomatic or consular representative of New Zealand.
4. A New Zealand citizen mentioned in Items (1) and (2) is taken to be, or to have been, a person to whom subsection 5(2) of the Act applies during any period while the New Zealand citizen, although ordinarily resident in Australia, is or was outside Australia if:
(a) immediately before leaving Australia for that period, the New Zealand citizen:
(i) was in Australia as the holder of a special category visa that was not cancelled; and
(ii) was not taken to be the holder of a special purpose visa except for those persons and for the purposes specified in Item 2 of this Schedule; and
(iii) was not in Australia as a diplomatic or consular representative of New Zealand, or the spouse or dependent child of a diplomatic or consular representative of New Zealand; and
(b) the New Zealand citizen was not outside Australia for that period because he or she was removed or deported from Australia under the Migration Act 1958.
Certain Persons present in Norfolk Island or the Territory of Cocos (Keeling) Islands Determined to be Permanent Residents
5. A person in Norfolk Island or the Territory of Cocos (Keeling) Islands who is not an Australian citizen and who at any time:
(a) in relation to a period during which the person was present in Norfolk Island or the Territory of Cocos (Keeling) Islands:
(i) the person's continued presence in that place was not, during that period, subject to any limitation as to time imposed by law, or, in a case where the person's continued presence in that place was subject to such a limitation, he or she would have been a permanent resident for the purposes of this Act if he or she had been present in Australia (other than in Norfolk Island or the Territory of Cocos (Keeling) Islands), or if he or she had been present on the another of the islands of Norfolk Island or the Territory of Cocos (Keeling) Islands, during that period; and
(ii) the person's presence in that place during that period was not in contravention of a law of Norfolk Island or the Territory of Cocos (Keeling) Islands; or
(b) in relation to a period during which the person was not present in Australia, the person was, during that period, the holder of, or deemed to be included in:
(i) a valid visa that is in a class of visas prescribed in Schedule 2 to this Determination, or a return endorsement that was in force; or
(ii) a document or endorsement in force under a law of Norfolk Island or the Territory of Cocos (Keeling) Islands entitling the holder to rights equivalent to those granted in a visa referred to in subparagraph (b)(i) or a return endorsement during that period.
For the purposes of this Instrument:
‘Airline crew member’ and ‘airline positioning crew member’ have the same meaning as in
regulation 1.03 of the Migration Regulations 1994.
‘Dependent child’ and ‘Spouse’ have the same meaning as in the Migration Regulations 1994.
‘Diplomatic or consular representative’ has the same meaning as the Migration Act 1958.
‘Return endorsement’ means a return endorsement issued under section 11A of the Migration Act 1958 before the day on which the Statute Law (Miscellaneous Provisions) Act (No. 1) 1987 received the Royal Assent (being a return endorsement that has not expired or been cancelled), and includes a document or notation referred to in subsection 9(3) of the Migration Amendment Act 1979. Return Endorsements were issued to Australian permanent residents during the period September 1979 - December 1986.
‘Special category visa’ and ‘special purpose visa’ have the same meaning as in sections 32 and 33 of the Migration Act 1958 respectively.
Schedule 2
For the purposes of this instrument, in relation to certain persons in Norfolk Island or the Territory of Cocos (Keeling) Islands who are determined to be Permanent Residents the following classes of visas are prescribed:
(a) documents and notations permitting residents to return to Australia, issued before 1 November 1979 to eligible persons;
(b) resident return visas, within the meaning of regulation 29AC of the Migration (1959) Regulations, issued or granted to eligible persons;
(c) return visas, within the meaning of regulation 2 of the Migration (1989) Regulations, granted to eligible persons;
(d) Group 1.4 (resident return (permanent entry)) visas, within the meaning of the Migration (1993) Regulations, granted to eligible persons;
(e) documents and notations referred to in paragraph (a), and visas referred to in paragraph (b), (c) and (d), that were continued in force on and after 1 September 1994 as transitional (permanent) visas by the Migration Reform (Transitional Provisions) Regulations;
(f) Return (Residence) Class visas granted to eligible persons under the Migration Regulations 1994.
For the purposes of this Schedule:
Migration (1959) Regulations
means the Regulations comprising Statutory Rules 1959 No. 35 and those Regulations as amended and in force from time to time.
Migration (1989) Regulations
means the Regulations comprising Statutory Rules 1989 No. 365 and those Regulations as amended and in force from time to time.
Migration (1993) Regulations
means the Regulations comprising Statutory Rules 1992 No. 387 and those Regulations as amended and in force from time to time.
Migration Reform (Transitional Provisions) Regulations
means the Regulations comprising Statutory Rules 1994 No. 261 and those Regulations as amended and in force from time to time.